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Friday, May 22, 2009

The hollowness of oath of secrecy

As I watched the oath-taking ceremony of the Union Council of Ministers live on TV, I couldn't miss the irony of administering the oath of secrecy to the new Ministers as required under the Third Schedule to the Constitution. A careful reading of this oath suggests that it is not against transparency, as it exempts communication or revelation of any matter brought under a Minister's consideration or any matter which was known to the Minister, if the same may be required for the due discharge of duties as the Minister. Therefore, there cannot be a conflict between this oath and a Minister's duty to reveal information under the RTI Act. An RTI applicant can always argue that the information is wanted for the due discharge of duties as the Minister, if the oath is invoked to deny information. I wonder whether any Ministry has invoked the oath to deny information so far under the RTI Act. Why did our Constitution-makers include this oath? Did they really believe that there could be information which might not be required for the due discharge of duties as the Minister, and it was necessary to keep such information under wraps? This 2004 article in The Hindu makes a strong case for replacing the oath of secrecy by an oath of transparency, in line with the recommendation of the National Commission to Review the Working of the Constitution. I couldn't find any reference to the oath of secrecy in the Constituent Assembly Debates; therefore, I am curious how this meaningless oath came to be included in the Third Schedule.

3 comments:

Mr. Prashant Bhushan in his lecture at St Hilda's College, Oxford the other day noted that the grounds for denying information in the Act have to be narrowly construed, and while comparing it with the English Act emphasized that lesser the exemptions the better it is. For that reason, amongst others, he said the Indian Act was much more empowering.

From what I understand, the oath by itself cannot be the reason for denying information. However, if the underlying reason (which we can keep guessing!) for that oat matches with any of the exemption criteria then alone would it be legally permissible to deny information.

Of course there is a lot of information that comes to the knowledge of a minister that is not to be publicly revealed in the discharge of his/her duties. Intelligence, military strategies, internal memoranda and other draft documents related to ongoing negotiations, etc. The oath makes a lot of sense - it calls for the ministers to reveal only what is required for the due discharge of his/her duties. 'Due' could very well imply whatever duty parliament has imposed which in this case would be the RTI act. I do not see any contradiction here.

I have posted an article in my blog http://secularcitizen.net/ in respect of this.

'Oath of Secrecy' or 'Oath of Transparecy'? It's time to decide

A Minister is a bridge between the people and the Government and he owes his primary allegiance to the people who elect him. But the Minister do swear not to divulge to anyone anything relating to the matters come under his purview, while the Right to Information Act extends right to the citizen to seek information on anything except that of national security and other classified data. A Minister in the Central Government at the time of taking office swears that “I will not directly or indirectly communicate or reveal to any person or persons any matter which shall be brought under my consideration or shall become known to me as a Minister for the Union except as may be required for the due discharge of my duties as such Minister.” A Minister in the State Government takes a similar oath with appropriate variations. The oath of secrecy finds a place in the Third Schedule to the Constitution.The ‘Oath of Secrecy’ of the above nature makes the minister a prisoner of Secrecy, as it is a constitutional obligation. This is infact a constitutional conflict, as Right to Information is being reckoned as a fundamental right.

Under practical circumstances, it is quite likely that a revealable information is suppressed by a Govt. Department taking shelter in the decision of a Minister resorting to the shadow of the ‘Oath of secrecy’. This is a serious prejudice to the operation of Right to Information Act, 2005 and in turn to the fundamental rights under Article 19(1)(a) of the Constitution. It is appropriate to quote Mr. V.P. Singh, our former Prime Minister, who told in 1989 “In the recent past we have witnessed many distortions in our information system. The veil of secrecy was lowered many a time not in the interest of national security, but to shield the guilty, vested interests or gross errors of judgments. Therefore the National Front Government has decided to make the ‘Right to Information’ a Fundamental Right.”

“Freedom of Information” is being reckoned as part of a fundamental right under Article 19(1) of the Constitution, which says that every citizen has freedom of speech and expression. The people cannot express themselves and perform their fundamental duties unless they know what’s happening in the systems that govern them. Supreme Court in 2004 vide “Peoples Union for Civil Liberties” v. “Union of India”, 2004 KHC 444 :2004(2) SCC 476 : AIR 2004 SC 1442) gave judicial recognition to “Right To Information” as part of “Freedom of Expression” under Article 19 (1) of the Constitution.

But it is shocking to learn from Government Sources this year that the practice of administering the oath of secrecy to a Union or State Minister while assuming office would continue with out any change and it would not be replaced by an oath of transparency, albeit the strong recommendation made by the Second Administrative Reforms Commission in its report on “Right to information: Master key to good governance” .

Public at large demand a change in the existing ‘Oath of secrecy’ provisions since the enactment of Right to Information Act. However the swearing in ceremony of the Union Government held last month also followed the ‘Oath of Secrecy’ without any change.

It would be appropriate if the Supreme Court takes suo motu cognisance of the matter. Alternately, the President of India may invoke the provisions of Article 143(1) in larger public interest to resolve the constitutional conflict in the matter of contravening provisions in Article 75(4) and Article 164(3) as to ‘Oath of Secrecy’, in the light of ‘Right to Information’, which has been judicially recognised as part of Fundamental right under Article 19(1)(a) by the Honourable Supreme Court in 2004.

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